NY Shield Law Keeps WSJ Reporter Out of Court

By Robyn Hagan Cain on February 24, 2012 9:02 AM

Widespread media support for the reporter's privilege has been garnering attention this week after more than two dozen media outlets signed on to an amicus brief filed with the Fourth Circuit Court of Appeals, arguing that New York Times reporter James Risen should not have to testify before a grand jury about the sources for his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. The media amici's obstacle in the Fourth Circuit is that the Supreme Court ruled in Branzburg v. Hayes that reporters cannot invoke the First Amendment as justification for refusing to testify before a grand jury.

In New York, however, reporters can take cover behind the journalist shield law. Last week, the Second Circuit Court of Appeals upheld a ruling that plaintiffs cannot subpoena a reporter to testify about his investigative reporting methods.

New York's Shield Law provides journalists an absolute privilege from testifying with regard to news obtained under promise of confidentiality, but only a qualified privilege with regard to news that is both unpublished and not obtained under a promise of confidentiality. A party seeking unpublished "news" may overcome the qualified privilege by making a clear and specific showing that the news is highly material and relevant, critical or necessary to the maintenance of a party's claim, and not obtainable from any alternative source.

The qualified privilege was tested in Baker v. Goldman Sachs, when a couple suing Goldman Sachs sought to subpoena a journalist to prove that information Goldman Sachs should have found in a financial transaction was readily available.

Goldman Sachs represented the Bakers in a June 2000 sale of their company, Dragon Systems (Dragon) to Lernout & Hauspie (L&H) in exchange for L&H stock that soon became worthless. The couple claims that Goldman Sachs should have uncovered an accounting fraud at L&H before the transaction was finalized because Jesse Eisinger, at the time a reporter for The Wall Street Journal, was able to uncover the fraud in his work for the newspaper, reports Thomson Reuters News & Insight.

Eisinger moved the squash the subpoena. The district court granted the motion, ruling that the testimony the Bakers requested was not critical to their lawsuit. The Second Circuit Court of Appeals affirmed, noting that even a narrow line of questioning would undermine the Shield Law.

Are state-based journalist shield laws the best tactic for keepings journalists out of the courtroom? Thirty-nine states and the District of Columbia have adopted statutes giving journalists some protection against subpoenas, according to The New York Times. Are state shield law differences -- or the lack of state shield laws -- too great an obstacle for journalists working for nationally-distributed publications? Should the Supreme Court clearly-establish a reporter's privilege?

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